Know Your Rights: Special Education Services

Students with difficulties learning at school because of disabilities, mental health, and/or behaviors may receive accommodations and services under and Individualized Education Program (IEP). Caregivers, the student, and members of the special education and general education teachers and staff work as a team to identify goals, accommodations, and related services to ensure the student has access to their education. Services may include transportation, post-secondary goals, specialized instruction, or counseling. The IEP must be based on a student’s current academic and functional strengths and areas of growth, and the team must meet to update the IEP at least once every year. Below is some information on legal rights, responsibilities, and processes for families of students with IEPs.

The Parent Educational Advocacy Training Center offers additional information and support services for families of children with disabilities and created many of the resources linked here. Visit their website for more info.

  • If you are concerned about a student’s academic progress, attendance, or behaviors in school, you can request an evaluation for special education.1
  • Anyone can refer a student for special education, including a caregiver or teacher. 
  • The request for an evaluation should be in writing – like an email or a letter – to the special education administrator in your division. You can also send it to your school principal but it may take more time. 
  • Click here for a fact sheet from PEATC on requesting a special education evaluation.
  • A school division has 65 business days from when the special education administrator receives the referral to determine if a student is eligible for special education services.2
  • The parents or caregiver will receive a Prior Written Notice that a referral for special education was made.  
  • The parents or caregiver will also receive a copy of Procedural Safeguards with information about the caregiver’s rights to dispute decisions about a student’s special education eligibility or services. 
  • The school division may agree to or deny the referral for an evaluation for special education services and must provide the reason for granting or denying the referral in writing.

Additional resources:

  • The request for an evaluation should be in writing – like an email or a letter – to the special education administrator in your division. You can also send it to your school principal but it may take more time.
  • Before evaluating or re-evaluating a student for special education, a parent must provide written consent for the evaluations.3
  • Evaluations and re-evaluations should be comprehensive and based on what areas of concern may affect a student’s learning. This may include a review of the student’s academic and medical history, cognitive and academic assessments, speech-language assessments, motor assessments, behavioral assessments, and other data related to how the student learns.4
  • Students who are already receiving special education evaluations must be evaluated at least once every 3 years, with some exceptions.5 
  • After the evaluation is complete, the school must hold a meeting to discuss the results and determine a student’s eligibility or continuing eligibility for special education. Schools must provide parents with a copy of the evaluation results and other reports at least 2 days before the meeting.6
  • If the parent or caregiver disagrees with an evaluation from the school, they may ask for an Independent Educational Evaluation (“IEE”) at no cost to the parent.7
  • To be eligible for special education, a student must have a qualifying disability that negatively impacts their performance in school. They also must need special education services because of their disability.8  
  • Qualifying disabilities are: autism; deaf-blindness; deafness; emotional disability; hearing impairment; developmental delay; intellectual disability; multiple disabilities; orthopedic impairment; other health impairment; specific learning disability; speech or language impairment; traumatic brain injury; visual impairment including blindness.9  
  • A student who receives good grades can still qualify for special education if they have a qualifying disability that has an impact on their education. To determine eligibility, decision-makers must consider the whole child.10 
  • PEATC factsheet on eligibility – English and Spanish 
  • After an evaluation or re-evaluation, the school must meet within 30 calendar days to determine if the student is eligible for special education. If the student is eligible, the student will receive an Individualized Education Plan (IEP). To create this plan, the school must invite the student’s parent or caregiver as a member of the IEP team to create the goals and services a student needs to learn.11 
  • The IEP team should include different members of the school division: the student’s regular education and special education teachers; a principal or assistant principal; a special education administrator; service providers (like a speech or occupational therapist); a school psychologist; and others. The student is also invited to participate in the special education meeting.12
  • The IEP team must meet at least once every year to review and revise a student’s Individualized Education Program, which should include information about the student’s strengths, areas of growth, and progress made towards annual goals that the team creates. The plan must also include the related accommodations and services needed for the student to make progress on their annual goals, which may include accommodations for assessments.  
  • Students must be educated in the Least Restrictive Environment (LRE) as part of their right to receive a Free Appropriate Public Education (FAPE) under special education laws. The LRE is the amount of time in the school day a student is with their general education peers throughout the day, including for meals, breaks, and extracurriculars.13
     
  • If there are concerns about a student’s progress on their IEP goals during the school year or changes to a student’s learning needs that require modifications to the IEP, a parent or caregiver can request an IEP meeting to consider changes at any time. 

Additional resources:

  • If there is a disagreement among the IEP team about an evaluation, eligibility determination, the goals or services in the IEP, or a student’s educational placement, there are several options to resolve the dispute. A school team member or the caregiver can request an informal meeting,14 a mediation,15 due process hearing,16 or the caregiver can file a special education complaint.17 Here are resources on these different dispute resolution processes: 
  • To disagree with special education decisions, do not sign documents that require parental consent to proceed. Signed consent is required for evaluation, to confirm or deny eligibility for special education, and changes in the student’s educational placement.  
  • When a parent disagrees with the decision made through the Virginia Department of Education complaint process or the due process hearing order, the next step is to appeal. However, there is no appeal for mediation. An appeal must include newly found information with supporting documents identifying errors in the previous decision.18
  • When a student’s behavior disrupts their learning or that of others, the IEP team shall consider the use of positive behavioral interventions, strategies, and supports to address the behavior.19 The IEP team shall consider either: 
    • Developing goals and services specific to the child’s behavioral needs; or 
    • Conducting a functional behavioral assessment (“FBA”) and determining the need for a behavioral intervention plan (“BIP”) to address the child’s behavioral needs. 
  • For students with an IEP, the school may consider any unique circumstances on a case-by-case basis when deciding whether to change the student’s placement for misconduct.  
  • The school may review the child’s IEP and any behavioral intervention plan, or consult with the child’s teacher(s) to provide further guidance.  
  • You may request a meeting with the IEP team to consider how the student’s disability may be a factor to the conduct. 
  • Students with IEPs have additional protections to prevent exclusion for conduct that is related to their disabilities. If a student is suspended for 10 or more days in the school year or has been suspended for at least 10 consecutive school days, the IEP team must meet to hold a Manifestation Determination Review (MDR). The MDR meeting is held to determine if the student’s conduct reflect a pattern of behaviors which are manifestations of their disability. The IEP team must decide if a student’s conduct is related to their disability and if the conduct resulted from a failure to implement the IEP before further exclusion from the school.  
  • Students whose conduct may be a result of a disability but have not been evaluated for special education may also receive protections from additional exclusion if they have a suspected disability.  
  • When a student with an IEP reaches 14 years of age, the IEP team should begin transition planning with the student and caregiver. Transition planning should include goals and services related to post-secondary education, career, and independent living.  
  • The IEP team decides transition services after identifying the student’s post-secondary goals. The services must help students reach their goals. Transition services may include instruction, related services, community experiences, and/or development of employment and other post-graduation objectives, including if appropriate, independent living. 
  • All IEPs must include a statement of the student’s Present Levels of Academic Achievement and Functional Performance (“PLAAFP”)which requires schools to document at what level the student is functioning at the current time.  
    • The PLAAFP includes information from assessments; instructional needs; strengths, interests, and preferences; and parent and student input.  
  • Goals and objectives for the Transition Plan are based in part on the transition assessments, the PLAAFP and on the person-centered plan.  
  • The transition IEP must include the accommodations or modifications required for your child to be able to meet their goals and objectives and access their Course of Study. 
    • Accommodations are agreed to by the IEP team. They usually involve adjustments to timing (e.g., extra time for homework), scheduling, presentation (how things are taught), response (multiple-choice, T/F, etc.), and setting (where instruction takes place). If your child needs testing accommodations, they must be listed in the IEP. 
  • During the transition planning process, it is important to involve other agencies and organizations that can support the student. The IEP must include a statement, if appropriate, of the responsibilities of other agencies and potential partners.  
  • PEATC’s transition guide for parents
  • Students with disabilities have the right to remain in public school until they turn 21-years-old.20
  • Students with disabilities turning age 22after September 30th remain eligible for schooling for the remainder of the school year.21 
  • Section 504 Plans stem from a different civil rights law protecting individuals with disabilities. The main purpose of Section 504 Plans is to ensure individuals with disabilities have access to organizations receiving federal funds, like public schools. 
  • A 504 plan allows children with disabilities who don’t want or qualify for an Individualized Education Program to receive accommodations that support their access to learning experiences at school.22 
  • To obtain a 504 plan, there are two requirements: 
    • A child has any disability that substantially limits one or more major life activities.  
    • The disability must interfere with the child’s ability to learn in a general education classroom.23 
  • There is no standard 504 plan. Unlike an IEP, a 504 plan doesn’t have to be a written document. A 504 plan generally includes the following:
      • Specific accommodations, supports, or services for the student to eliminate barriers to receiving instruction in school; 
      • Names of who will provide each service; and  
      • Name of the person responsible for ensuring the plan is implemented.

Additional resources:

Additional resources:

1: Va. Admin. Code § 20-81-60 

2: 8 VA. ADMIN. CODE § 20-81-60

3: 8 VA Admin. Code § 20-81-60

4: 20 U.S.C. § 1414(b)(3)(B)

5: 34 C.F.R. § 300.303(b)

6: 8 VA Admin. Code § 20-81-70

7: 34 C.F.R. § 300.502

8: 20 U.S.C. § 1402(3); 34 C.F.R. § 300; 8 Va. Admin. Code § 20-81-10 

9: 34 C.F.R. § 300(c)

10: 34 C.F.R. § 300.101(c)

11: VaAdmin. Code § 20-81-110; 35 C.F.R. § 300.321 

12: 35 C.F.R. § 300.321

13: VA AdminCode § 20-81-130

14: https://www.parentcenterhub.org/disputes-overview/

15: 8 VA Admin. Code § 20-81-190 

16: 8 VA Admin. Code § 20-81- 210

17: 8 VA Admin. Code § 20-81- 200

18: 8 VA Admin. Code § 20-81-210(T)

19: 8 VA Admin. Code § 20-81-160

20: Va. Code § 22.1-213

21: 8 VA Admin. Code § 20-81-10

22: http://vlas.org/special-programs/ask-advocating-for-special-kids/special-education/pre-school-through-12th-grade/ieps-and-504-plans/

23: https://www.understood.org/en/articles/the-difference-between-ieps-and-504-plans

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